Monday, January 17, 2011

Although it is often said that there is a presumption that attorneys fees are awarded to the prevailing party, obtaining attorneys fees is tricky. Just because you won the case doesn't mean that your time entries can be submitted willy-nilly for every effort made in the case. Because there are so many minefields, I devoted a whole chapter of Copyright Litigation Handbook to the topic.

In Roger Miller Music, the plaintiff prevailed, but didn't recover fees. But the fee application did not argue the Fogerty factors:

1. whether the non-prevailing party's claims were frivolous;
2. the non-prevailing party's motivation;
3. the factual and legal unreasonableness of the non-prevailing party's position;
4. the need to advance considerations of compensation and deterrence.

1 fee applications should address the Fogerty factors;
2. fee applications should distinguish between time spent on successful and unsuccessful efforts;
3. fee applications should not ask for fees related to unsuccessful efforts.
4. fee applications should argue the "big picture" questions of policy and deterrence.

In Roger Miller, plaintiffs unsuccessfully appealed one of the trial court determinations, then failed to break out the time expended on that appeal. The trial court found that plaintiff's failure to submit evidence that the Fogerty factors were satisfied warranted denial of attorneys fees.

Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014).
Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.

About Me

Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014).
Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.